Bombay High Court
Rahul Pandurang Padghan vs The State Of Mah.Thr.Pso Washim on 20 November, 2017
Bench: Swapna Joshi
judg. apeal 19.06.doc
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 19 OF 2006
Rahul Pandurang Padghan,
Aged about 28 years,
R/o.-Adoli, Tq. and District Washim. .. APPELLANT
-v e r s u s-
The State of Maharashtra, through
its Police Station Officer, Police Station,
Washim, Tq. and District Washim. .. RESPONDENT
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Mr. A.D. Girdekar, Advocate holding for Mr. A.P. Tathod, Advocate for appellant.
Mr. N.R. Rode, A.P.P. for State.
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CORAM: MRS. SWAPNA JOSHI, J.
DATED : 20th November, 2017
ORAL JUDGMENT
This Appeal has been directed against the judgment and order dated
08-12-2005 delivered by the learned IInd Ad hoc Additional Sessions Judge, Washim in
Sessions Trial No.151 of 2001, thereby the learned trial Judge had convicted the
appellant (hereinafter will be referred as 'the accused') for the offence punishable under
Section 363 of the Indian Penal Code and was sentenced to suffer Rigorous
Imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for one month.
2] I have heard Mr. A.D. Girdekar, the learned Counsel holding for
Mr. A.P. Tathod, learned Advocate for appellant and Mr. N.R. Rode, the learned Additional
Public Prosecutor for the respondent/State. I have perused the entire evidence on record
led by the prosecution and the judgment passed by the learned trial Judge.
judg. apeal 19.06.doc
3] The brief facts of the case are that :-
In the year 2001, the complainant Onkar Kisan Nitnaware (PW-1) was
residing with his family at Village Adoli, Tahsil and District Washim. The prosecutrix
(PW-2) is the daughter of complainant. At the relevant time, she was aged about 14 to
15 years old. During the intervening night of 14-02-2001 and 15-02-2001, the
complainant along with his son was sleeping in his house. At about 3 o'clock in the
night, he heard the noise of pelting stone on his house. He heard the whispers of the
accused. He heard someone calling his daughter by name. The prosecutrix opened the
door and she went out. The complainant though that his daughter would return after
seeing as to who was there. However, after waiting for 5 minutes as the prosecutrix did
not return inside the house, therefore, the complainant went out to search her. The
prosecutrix was not found out side the house. Therefore, the complainant proceeded to
the house of the accused. The accused was also not found in his house. The
complainant therefore proceeded to the Police Station and lodged the complaint against
the accused on suspicion. The offence was registered on the basis of the said complaint
(Exhibit-15). The necessary investigation was carried out by Investigating Officer (PW-8)
Said najim Ali. PW-8 then registered the offence vide Crime No.144 of 2001 under
Sections 363 and 366 of the Indian Penal Code.
4] During the course of investigation, it was revealed that the accused took
the prosecutrix to Railway Station Washim where they met with one Rekha who was
acquainted the accused. The accused and the prosecutrix along with Rekha proceeded
to Arni, District Yavatmal. At Yavatmal the accused stayed with the prosecutrix for about
a week. Thereafter, both of them were apprehended by the police from Arni Police
Station and their custody was handed over to the Police Station, Washim. The statement
of the prosecutrix was recorded at Washim Police Station. It was revealed that at Arni
the accused and the prosecutrix resided together as husband and wife and the accused
committed sexual intercourse with her. The Police added Section 376 of IPC and
arrested the accused. The statements of the relevant witnesses were recorded. The
necessary investigation was carried out and on completion of the investigation, the
judg. apeal 19.06.doc
charge-sheet was filed in the Court of learned J.M.F.C. at Washim. The case was
committed to the Court of Sessions. The learned trial Judge framed the charge and
conducted the trial. After recording the evidence, hearing both the sides, the accused
was convicted as aforesaid. The accused was acquitted of Sections 366 and 376 of IPC.
5] After hearing both the sides and hearing the rival contentions of
the learned APP and the learned Advocate for the accused, it would be advantageous to
go through the testimony of the father of the prosecutrix and the prosecutrix on the point
of the age. The prosecution has relied upon the testimony of PW-4 who is the
Headmaster of the school where the prosecutrix took her education in the Ist and IInd
standards. The testimony of PW-5 who is the Medical Officer and who conducted the
ossification test and the testimony of PW-7 who is the radiologist.
6] So far as the testimony of the father of prosecutrix is concerned,
according to (PW-1) Onkar Nitnaware, the age of the prosecutrix on the date of
recording his evidence that is on 02-09-2004, was about 18 to 19 years. According to
him, it indicates that at the time of incident which had taken place on 15-02-2001, the
prosecutrix must be about 14 to 15 years old. PW-1 failed to state the exact date of
birth of the prosecutrix. Secondly, PW-1 is a labourer working in taluka Washim. The
testimony of (PW-4) Ramchandra who is the Headmaster of Zilla Parishad Primary
School, Jumla, as per the school record, the date of birth of the prosecutrix is
20-12-1985. PW-4 deposed that on 13-07-1992, an affidavit was filed by the father of
prosecutrix in the school. The affidavit discloses the date of birth of the prosecutrix as
20-12-1985. On the basis of the said affidavit, the entry was taken in the school register.
In the cross examination, PW-4 fairly stated that there is no extract of Birth-Death
Register maintained by the village along with the affidavit. In this context, the testimony of
PW-1 indicates that on admission of his daughter in the school, PW-1 has shown the
date of birth of his daughter approximately as per his desire. The testimony of PW-4 thus
indicates that he has not informed the correct date of birth of his daughter to the
Headmaster of the school while admitting the prosecutrix in the school in Ist standard.
His testimony also reveals that he had not produced the birth certificate issued by the
judg. apeal 19.06.doc
Gram Panchayat, with the school authority. Similarly, no Birth-Death Register
maintained by the Gram Panchayat was produced before the School Authority while
tendering his affidavit. Thus, the testimony of PW-4 does not throw any light on the
correct date of birth of the prosecutrix and the testimony of PW-1 makes clear that the
approximate date of birth was recorded by the School Authority or the concerned
Headmaster of the school, while admitting the prosecutrix in the Ist standard.
7] Medical Officer (PW-5) Ganeshgir Gosawi was attached to the
main hospital at Akola on 24-02-2001. According to him, he advised the X-rays of the
right elbow, right wrist and right side iliac crest of both the sides of the prosecutrix. The
testimony of Radiologist (PW-7) Kiran Deshmukh indicates that the X-ray plates were
examined by him and the X-ray reveals that the upper end of radius appeared and
fused and the lower end of radius was fused. He concluded the age of the prosecutrix
as between 14 to 15 years. Accordingly, he was issued report (Exhibit-35). During the
cross examination, he stated that the lower end of the radius appeared and fused as
shown in the medical jurisprudence and toxicology indicates the age of female as 17 to
18 years old. Thus, the testimony of PW-7 indicates that as per the Modi's Medical
Jurisprudence and Toxicology, the age of the prosecutrix was about 17 to 18 years old.
On careful scrutiny of the testimony of PW-1 , PW-4, PW-5 and PW-7 it is revealed that
the age of the prosecutrix, at the time of incident, was about 18 years. It is significant to
note that the prosecutrix (PW-2), in this regard has deposed that at the time of
recording her evidence, she was aged about 21 years old. Meaning thereby, at the
time of incident she was about 18 years old. Thus, the prosecution has failed to prove
that the prosecutrix was below the age of 18 years old at the time of incident. The
learned Trial Judge has not considered the above said evidence in right perspective.
8] On the point of incident, the testimony of PW-1 shows that at the
time of incident at bout 3.00 am he heard the noise of stone on the tin roof. He then
heard the noise of Rahul asking the prosecutrix to come out of the house. The
prosecutrix then opened the door and left the house after hearing the voice and call.
PW-1 thought that within five minutes his daughter would come inside the house or he
judg. apeal 19.06.doc
also thought that she must have gone outside the house for attending the nature's call.
Since the prosecutrix did not return back, PW-1 went towards the house of the accused
which is situated around 200 ft away from his house. PW-1 did not notice the accused
in his house. He searched his daughter for some time and then he proceeded to the
Police Station and lodged the complaint against the accused on suspicion (Exhibit-15).
During the cross examination, PW-1 admitted that he was not aware as to whom the
said voice belonged when he heard. He admitted that he went to the house of the
accused because there were love affairs amongst the accused and his daughter.
9] According to PW-2, she herself and the accused decided to go away
from Adoli. The accused asked her to accompany at Mumbai. He assured that he will
marry with her. She accordingly left her house during night time with the accused.
They both went to Umra from Adoli. They boarded a Jeep at Umra and came to Washim
railway station. They met with a lady who was acquainted with the accused. They all
went to Arni, District Yavatmal. PW-2 stated that she stayed with the accused in the
house of that lady for about 8 days. They both decided to go to Mumbai from Arni.
However, Police caught both of them at Arni. They were brought to Washim from Arni.
The accused was taken to Akola from Washim and her parents took her from the
custody of Police. It is significant to note that during the cross examination, PW-2 fairly
admitted that she stayed at Arni with the accused with her consent and she left her
house at her own and stayed with the accused at Arni at her own. The said clear
admission of the prosecutrix makes clear that the prosecutrix who was a matured girl of
18 years old, at her own accord accompanied with the accused at different places and
stayed at Arni with him for about a week as per her own desire. Thus, the testimony of
PW-2 does not disclose that she was forcibly taken by the accused at Arni. In view
thereof, it is held that the prosecution has failed to prove that the accused kidnapped
the prosecutrix who was below the age of 18 years old at the time of incident. The
learned trial Judge has failed to consider the testimony of the witnesses in right
perspective and has erroneously come to the conclusion that the accused kidnapped the
prosecutrix from Adoli to Arni.
judg. apeal 19.06.doc
10] In view of above, it is held that the prosecution has failed to prove its case.
The learned trial Court has not properly evaluated the evidence led by the prosecution. In
view thereof, the judgment and order passed by the learned trial Judge, needs to be
quashed and set aside. Hence, the following order:-
Order
(a) Criminal Appeal No.19 of 2006 is allowed.
(b) The judgment and order dated 08-12-2005 delivered by the
learned IInd Ad hoc Additional Sessions Judge, Washim in
Sessions Case No.151 of 2001, is quashed and set aside.
(c) The appellant is acquitted of the offence under Section 363 of
the Indian Penal Code.
(d) The bail bonds furnished by the appellant stand cancelled.
(e) The fine amount, if any, deposited by the appellant be
refunded to him, if not withdrawn.
(f) Muddemal property be dealt with as directed by Trial Court
after the appeal period is over.
JUDGE
Deshmukh
